Kriss v. Sprint Communications Co., Ltd. Partnership

Decision Date03 July 1995
Docket Number94-2906,Nos. 94-2815,s. 94-2815
Parties68 Fair Empl.Prac.Cas. (BNA) 1382, 66 Empl. Prac. Dec. P 43,645 Rhonda M. KRISS, Appellee/Cross-Appellant, v. SPRINT COMMUNICATIONS COMPANY, LIMITED PARTNERSHIP, Appellant/Cross-Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Larry Shumaker, Kansas City, MO, argued, for appellant.

Susan M. Robiner, Minneapolis, MN, argued (Kathleen M. Graham and Daniel Oberdorfer, on the brief), for appellee.

Before WOLLMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BOGUE, Senior District Judge. *


Sprint Communications Company decided not to transfer sales representative Rhonda Kriss to the New Business Management Group (new BMG) in September, 1990. Kriss sued Sprint for gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and the Minnesota Human Rights Act, Minn.Stat. Sec. 363.03. After a bench trial, the district court made findings of fact that Kriss's supervisor, Scott Miller, had a "discriminatory attitude," and had injected this attitude into the decision-making process which denied Kriss the transfer she wanted. While the court concluded that Kriss had proven her claim of gender discrimination, and accordingly awarded damages and penalties under Title VII and the Human Rights Act (including attorney's fees and costs), it rejected her claim of constructive discharge. (The district court's opinion is published at 851 F.Supp. 1350 (D.Minn.1994)).

Sprint has appealed the district court's findings of liability, damages, and attorney's fees. Kriss has cross-appealed on the issue of constructive discharge. For reasons explained below, we reverse the finding of liability against Sprint and affirm the finding on constructive discharge.


Prior to September 1990, Sprint's sales force was divided into two distinct groups: the National Accounts Division (NAD), which sold to customers that billed over $100,000 per month; and the Business Market Group (BMG) which sold to customers that billed under $100,000. Just prior to reorganization, Margie Bingham was manager of NAD and reported to the Regional Director, Marilyn Deas. Ryan Sothan was the manager of BMG, and Scott Miller and Jay Anders each managed a group of sales representatives in BMG. Kriss worked as a sales representative for Scott Miller, who had hired her. 851 F.Supp. at 1352.

Kriss performed well above her assigned sales quotas. While she attained outstanding sales numbers, she also experienced problems in servicing and maintaining her accounts after the sale. Some of these problems were attributed to internal billing problems which plagued Sprint at that time. On the other hand, Kriss was responsible for creating a number of her own problems, including not filling out phone numbers correctly on order forms and miscommunicating with customers. Other customers, however, praised her responsiveness. 851 F.Supp. at 1352-53.

The district court made certain findings regarding Miller, Kriss's supervisor, without alluding to any particular incidents or testimony: Miller was not as supportive of Kriss as he was of male representatives; he was less available to women representatives in both professional and social settings; support staff resources were unequally distributed between Kriss and male representatives; support staff were unavailable when Kriss sought them; and Miller had a poor record of retaining women sales representatives. 851 F.Supp. at 1353. The court found that Miller contributed to a male-dominated atmosphere in the workplace by discussing sports with men but not women, and by inviting the "Tie Lady," "a woman that worked at a men's clothing retailer, [to] bring samples of ties into sales meetings...." 851 F.Supp. at 1353-54. Also, Miller once "offered as a sales incentive a gift certificate for a men's clothing store." 851 F.Supp. at 1354. According to the district court, Miller's comments showed "a stereotypical attitude toward the roles of men and women." Id. He once said, for instance, that certain of his sales representatives were not ready to "run with the stallions." Id. There was also testimony that he made "evaluative comments" about the physical appearance of women in the office. Id.

In February 1990, an incident involving an account known as The Roach Organization (TRO) became the defining moment for Kriss in the eyes of some at Sprint. The TRO story is a tale of missed communications and hurt feelings that is well recounted at length in the district court's opinion. 851 F.Supp. at 1354-55. Obtaining the TRO account required placing orders with, and using the staff of, the NAD. Because of the misunderstandings that occurred, the NAD staff, and especially its manager Margie Bingham, came away with a poor impression of Kriss.

In September 1990, Sprint reorganized its sales force into three groups: the NAD would retain accounts over $100,000; the "New BMG" would still sell to customers with billings over $10,000, but now the emphasis would be on service and expanding the billings of existing customers; the National Sales Division (NSD) would focus on sales to new customers with billings under $10,000 per month.

In the spring of 1990, Sprint management began to decide who would move from the old BMG to the new BMG and who would move to the NSD. Marilyn Deas asked Margie Bingham to identify representatives to transfer. Deas had the final decision, but intended to rely on Bingham's recommendation. Because Bingham was in the NAD, she would depend heavily on the recommendations of the managers in the BMG, namely Miller, Anders, and Sothan. Bingham held a series of meetings with Miller and Anders, which Sothan sometimes attended.

Bingham began the process by stating that there were three representatives she would not consider for transfer to the new BMG. One of them was Kriss. Bingham had a bad impression of Kriss from the TRO incident. Bingham testified that if Miller had pushed for Kriss, she would have been willing to enter the debate and examine Kriss's personnel file and performance reviews. Miller did not raise any objection to Kriss being excluded. The district court faulted Miller's silence. "He did not point out her superior sales performance or awards that would have reflected favorably on Kriss. At the same time, he withheld negative information about the male representatives." 851 F.Supp. at 1356. The five chosen for the new BMG were all men. Kriss was assigned to the NSD, and was disappointed in not having been chosen to the new BMG. On December 6, 1990, after making significant contributions in the NSD, Kriss submitted her resignation.

In making its conclusions of law, the district court decided that Sprint was liable for gender discrimination for failing to transfer Kriss to the new BMG. Under Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the plaintiff must show that gender was a motivating factor in the employment decision. If plaintiff makes such a showing, the burden shifts to the employer to show that it would have made the same decision even if it had not taken the illegitimate criteria into account. Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the plaintiff must present a prima facie case of discrimination. If the plaintiff makes such a showing, then the defendant must rebut the prima facie case by producing a non-discriminatory reason for the decision. If defendant produces such a reason, then the plaintiff must prove that the proffered reason is pretextual. The district court chose to rely upon Price Waterhouse, but opined that the result would have been the same under McDonnell Douglas. 851 F.Supp. at 1357, 1359 n. 5.

The district court found that Miller was closely involved in the decision-making process, and that the evidence of his discriminatory attitude made it more likely than not that gender was a motivating factor in the decision not to transfer Kriss. The district court concluded that the evidence showed that Miller had a "discriminatory animus" toward women in general. The district court then used this observation to explain Kriss's problems as a result of the TRO incident and Bingham's failure to choose Kriss for the new BMG. The court faulted Miller for not doing enough to support Kriss in the TRO incident and concluded that Bingham's poor perception of Kriss in the TRO incident was a result of Miller's sexism. The court also faulted Miller for failing to argue for Kriss after Bingham had stated that she would not be considered, and for failing to raise negative information about the male candidates. Miller's "influence on the decision making process makes it more likely than not that his discriminatory attitude was a motivating factor in this decision." 851 F.Supp. at 1358-59.

The district court rejected Sprint's attempt to rebut Kriss's allegations of discrimination. "Once a plaintiff has shown that a discriminatory animus was a motivating factor in the decision making process, defendant may avoid liability only if it can prove by a preponderance of the evidence that it would have made the same decision even if the illegitimate criterion had not been taken into account." 851 F.Supp. at 1359 (citing Price Waterhouse, 490 U.S. at 258, 109 S.Ct. at 1794-95). Sprint argued that regardless of any discriminatory attitude Miller might have had, Bingham would have made the same decision because of her perceptions of Kriss in the TRO incident. The district court disagreed, concluding that Bingham's decision "could easily have been different." 851 F.Supp. at 1359. Sprint failed to show, the court ruled, that the same decision would have been made without Miller's injection of a discriminatory animus into the new BMG selection process. A...

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